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Starting Point

News/Business. Soledad O'Brien. Soledad O'Brien looks ahead to the days top news and events. New.

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CNN

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02:00:00

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San Francisco, CA, USA

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Comcast Cable

TUNER
Virtual Ch. 759 (CNN HD)

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mpeg2video

AUDIO CODEC
ac3

PIXEL WIDTH
1920

PIXEL HEIGHT
1080

TOPIC FREQUENCY

Justin 9, Oscar 8, Bota 8, Kansas City 7, Samantha 6, United States 6, Us 6, Pretoria 6, Wichita 5, Mr. Pistorius 5, Reeva 5, Applicant 5, Oscar Pistorius 4, Peterson 3, Robyn Curnow 3, Jeff Toobin 3, Reeva Steenkamp 3, Savio 3, Graham 3, Johannesburg 3,
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  CNN    Starting Point    News/Business. Soledad O'Brien. Soledad O'Brien  
   looks ahead to the days top news and events. New.  

    February 22, 2013
    4:00 - 6:00am PST  

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[ male announcer ] engine light on? come to meineke now for a free code scan read and you'll say...my money. my choice. my meineke. that is it for "early start." >> "starting point" with soledad o'brien starts right now. welcome, everybody. starting point this morning, 30 minutes away from the breaking news where accused killer oscar pistorius will find out if he will go free on bail. a judge has to decide if he will go free on bail on that sensational murder case. we'll bring it to you at 7:30
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a.m. eastern. we are joined by jeffrey toobin, andrew neveling, and ted simon who worked on the amanda knox case will join us as well. and the monster winter storm wreaking havoc across 20 states. the national guard looking for stranded motorists stuck on major highways and wreaking havoc on roads and airports. the blizzard is not done yet. the search is on for a killer hunted a wild vegas chase and shoot-out. we're hearing more about the victims, one an up and coming wrapper, another, a cab driver who recently moved to the city for a job. tim tebow cancels a controversial talk. "starting point" begins right now.
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in south africa, we're less than a half an hour away of knowing whether accused murderer oscar pistorius will walk out of court on bail. a judge is expected to make a ruling. he is accused of premeditated murder of his model girlfriend. and this is the fourth day of pistorius' bail hearing. we are awaiting the judge's decision. 29 minutes away. robyn curnow joins us live now from pretoria. >> half an hour to go until we hear that judgment from the magistrate on whether or not oscar pistorius spends tonight and the next few months perhaps the rest of this year behind bars or whether he walks free for now and goes home. and, of course, the journalists
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standing outside here, the pretoria magistrate's court, all waiting anxiously. also we know inside that court, his family, he has a large family, they have been incredibly supportive. literally standing behind him, sitting behind him, often putting their hand on his shoulder and they are all pretty anxious. we can see also oscar pistorius' demeanor, is he drawn, he hasn't slept well. he is slowly coming to terms with the realization he's facing a formidable battle ahead to stay out of jail. >> robyn kurnow. thank you for the update. we will consider to follow the story. last night, a close friend told piers morgan he never saw a dark side. piers asked him about an incident at a restaurant when a gun that pistorius was carrying
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went off. >> it wasn't intentional and that could have been a very bad event and something very tragic. all very fortunate, and after that event, oscar was very apologetic. that's how dangerous guns can be, by no means, do i think he was negligent with the gun. it was pure accident as to what happened. >> kevin lerena said the last time he saw oscar and reeva together, they appeared very much in love. let's bring in jeff toobin. does that help or hurt him? to have a friend talk about a past incident with guns? or is it largely irrelevant? >> i think it's largely irrelevant. he has so many bugger problems than an incident that happened quite some time ago. he killed this woman, that's indisputable. one fact that dominates this proceeding and dominates his legal future, that's what he has got to deal with.
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not some incident in the past. >> you walk through what's new today, first we know obviously in 27 minutes, there will be the ruling on the bail hearing. in fact, the judge will reveal the case first it will probably take 10 to 15 minutes to walk through the entire case over the last couple of days and he'll give his ruling on bail yes, bail no. also, the question is oscar pistorius a flight risk. he clearly has disability. famous, almost impossible for him to get out of the country and the prosecution countering, in fact, other famous people able to get out pretty easily and finally the defense talking about culpable homicide. and i thought there was an interesting back and forth about intention. didn't he intend to kill? he intended to kill a burglar. what kind of impact does that have on what they are talking about? >> a big impact. in the united states we would refer to that between the difference between second degree murder, premeditated intentional
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murder and something like mans. in south africa it's true there are lesser penalties if it is not premeditated murder. so the -- this is an intent case. i think the facts -- the important fact we know is that pistorius killed reeva. not disputed. he's admitted it. >> not who did he think she was? >> exactly. that's what the whole trial will be fought over. >> is the charge as the defense contends whether or not he intended to kill reeva, right? the back and forth they are having, there was an intent to kill a person in the bathroom. was it an accidental intent in terms of he didn't know it was reeva, or was it still intent. >> well, the -- the difference is whether you intended -- if he intended to kill reeva, it's a very different crime than if he intended to kill a burglar. that is what this trial will be fought about. he is very likely to have some
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criminal culpability, even if he wins that argument. >> meaning what? he could face jail time? >> absolutely. the prosecutor has made that point several times, is he looking at prison time under all scenarios here, even in south africa where crime is -- is so epidemic and a lot of people have guns to protect themselves, you can't shoot at a door. without knowing who is behind it. >> and he has admitted to firing blindly. >> the question, how much time he spends in prison, not whether or not he goes to prison. >> we're about 24 minutes away of the magistrate coming out and reviewing the case on whether oscar pistorius will be granted bail. at the bottom hour, we'll speak with andrew neveling. he is the editor with "heat"
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magazine in south african. and he has some insight on steenkamp and pistorius. and we have an anderson cooper special tonight at 7:00 p.m. much of the midwest shoveling and shivering after a fierce winter storm covers a lot of the region with snow, ice, and sleet. classes have been canceled. universities closed. kansas city international airport shut down. it just reopened a couple of minutes ago. united airlines flight stranded on the tarmac for an hour and a half because of heavy snow and this kansas city bus. take a look at this, trying to negotiate a turn. and fish tails, takes out a light pole. how messy and dangerous it is. the storm affects 20 states. millions affected. we have the story covered from all angles. erin pike is in wichita and
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jennifer delgado in the cnn weather center. erin, let's start with you. >> it is freezing here. a lot colder than yesterday. 14 degrees, and here in wichita, they got the second highest snowfall in recorded history. 14.2 inches, so because of that, lots of school districts remain closed. yesterday, wichita was a ghost town. trying to dig out today. most of the flights out of kansas city international airport are canceled this morning until 9:00 central. the airport is open, though, as you mentioned, and flights look to be on time throughout the afternoon. we'll keep monitoring that for you. the wichita and st. louis airports are also open. dozens of cancelations, so viewers traveling to and from those areas need to pay attention. the roads very icy, officialed
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wa want people to stay off the roads if they can. >> thank you, erin. jennifer gel de jennifer delgado. >> for areas in wichita, parts of missouri, they will be try. this is what's left of the storm system, producing light system, we're not talking about more than two inches. louisiana, mississippi, this whole area is going to be dealing with very heavy rainfall. for today alone, we could see potentially 3.5 inches of rain, and as we go through the next couple days, more systems moving through. 4 to 6 inches of rainfall. big area for flood threat, and the same energy moving up toward the northeast and potentially bringing a foot of snow or more, starting saturday for parts of new england. overall, wider view today, things are looking pretty nice. a little bit cold, temperatures
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in the teens in parts of the midwest. where people have been stranded on the roadways. that's cold. >> yes it is. a mess. jennifer, thank you very much. we'll talk about kansas city mayor sly james about what's happening in his community and talking about new developments in the wild chase and shoot-out that happened in las vegas. christine has that and other stories making news. >> really something. >> police still on the hunt for the begunman that ended with a fiery crash right on the las vegas strip. this happened close to the flamingo resort. among the three people dead, the taxi driver, his passenger, and a wrapper known as kenny clut . maserati has been featured prominently on his pictures and youtube videos. the brother of the taxi driver, fighting back tears, says whoever did this needs to pay. >> my life mission is to see
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them punished for the things they did. they don't know who they touched. >> bolden moved to las vegas a year ago to find work. and drew peterson sentenced to 38 years for the murder of his wife kathleen savio in 2004. peterson screamed out i did not kill kathleen. savio's sister shouted right back, yes, you did, you liar. the former cop vows to appeal. and the defense claims savio's death was an accident. >> i don't think there is anybody who has any doubt in this universe that we proved beyond all doubt that kathleen savio was murdered. accident is off the table. >> savio's death was initially ruled an accident. but the case reopened in 2008 after peterson's fourth wife stacy disappeared. she is still missing. rescue crews in hawaii have not given up hope of finding a
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34-year-old navy s.e.a.l. diver, he got separated on tuesday in an open water training exercise off oahu. they are using computer models to figure out why ocean current might take him. three paratroopers caught between a rock and a hard place. they got tangled in the trees in training exercises in washington state. heavy winds blew them off course. the paratrooper has bumps and bruises bruises, no serious injuries. and pork sausage recalled because it might contain bits of plastic. one-pound packages of gwalney mild pork saus age roll. they were sold in 11 states and washington, d.c. the plastic likely came from worker's gloves. and tim tebow has canceled an april appearance at a dallas mega church causing a lot of
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controversy. the pastor robert jeffers has been ve open with his criticism of gays and other faiths. >> interesting to see that. still ahead on "starting point" more on developing stories. kansas city slammed by the winter storm. the national guard taking to the highways looking for stranded motorists. airports are jammed. a bus slam into and taking out a light pole. we'll ta talk to the mayor, sylvester james jr. about the digout there. and business news? google stepping up its game. a new look at google's laptop in moments. the delightful discovery. the sweet realization that you have a moment all to yourself. well, almost. splenda® no calorie sweetener. splenda® makes the moment yours™.
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your doctor will say get smart about your weight. that's why there's glucerna hunger smart shakes. they have carb steady, with carbs that digest slowly to help minimize blood sugar spikes. [ male announcer ] glucerna hunger smart. a smart way to help manage hunger and diabetes. welcome back, everybody. we await decision on whether oscar pistorius will get bail. the magistrate expected to deliver his bail decision at 7:30 a.m. eastern.
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he will read through the arguments, sum up the last four days in court and make his ruling, whether or not pistorius will get mail or denied bail and be remanded to jail. could take 10 or 15 minutes before he gets to that decision. we'll cover that live when it happens. let's get back to other top stories, this monster storm that has lambed to kansas city. the roads a mess, impassable, in fact. cars struck on roadways forced the national guard to go out and the city declaring a state of emergency as its digging out. sly jams the mayor of kansas city, missouri, he joins us by phone. nice to talk to you. you are really busy. how does it look this morning. pretty much shut down last night. >> good morning, soledad, things looking considerably better. we were able to work all night and get a lot of the arterials plowed. they have all been plowed, as a matter of fact.
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we will be trying to clean them curb to curb. we are hampered by the fact that we have 6500 miles of street. >> that's a lot. i'm talking to you while i look at pictures of cars stuck on the highway. i know the national guard had to help rescue people who couldn't move. what is the status of that right now? >> well, it's still an ongoing process to try to get people off the roads. fortunately, we're in much better shape than we were. we had 60 buses actually stranded, stuck in the height of the storm. so you can imagine how many vehicles, other than buses were as well. but it got to be pretty bad at one point in time and as you can probably imagine, pulling buses out of a ditch is not the easiest thing in the world. we actually also have a number of tow trucks or plow trucks that were stuck as well.
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>> mayor sly james jr. joining us from kansas city, missouri. thank you for talking us with. i know it's a very busy morning for you, we appreciate your time. still ahead on "starting point," continue to follow the breaking news in about eight minutes. we'll find out if oscar pistorius will receive bail. the south african magistrate will hand down the decision at 7:30 a.m. eastern. we'll cover that for you live when it happens. and google trying to compete with apple, we'll look at that. coming up next. for small busin. get a shareable pool of data... got enough joshua trees? ... on up to 25 devices. so you can spend less time... yea, the golden barrels... managing wireless costs and technology and more time driving your business potential. looks like we're going to need to order more agaves... ah! oh! ow! ... and more bandages. that's powerful. shareable data plus unlimited talk and text. now save $50 on a droid razr maxx hd by motorola.
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welcome back to "starting point." i'm christine romans minding your business. the u.s. stock market poised for a big rebound. the hopes of hitting an all-time high on hold. new this morning, the recession in europe is getting worse. the european commission expects economic growth to contract more than originally thought. many of the 17-member nations in the eurozone are struggling with austerity measures, it's a preview of what this country could face if forced spending cuts aren't avoided one week away. google unveiled the chrome
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book pixel yesterday. it features touch screen technology, enhanced cloud computing, and a built-in cellular network much it starts at $1 3sh,300. the previous chrome book goes for about $250. this expands the hardware business, taking aim at apple and microsoft. >> it's so interesting to see how they moved into this arena. >> stocks near a record high. $800. another thing we should have bought a lot of back in the day. still ahead on "starting point," in the courtroom for the magistrate's decision. legal analyst jeff toobin will join us for an alice. and remember when mitt romney said 47% of americans were victims. carter's grandson exposed that
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infamous comment. we'll speak to president carter about what president obama had to say about that. and love on the court. the slam-dunk proposal worth watching.
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one! -two. -[ all ] three! [ male announcer ] the bankamericard cash rewards credit card. apply online or at a bank of america near you. welcome back, everybody. we start with breaking news this morning. want to show you some pictures of a helicopter crash that happened at oklahoma city, 5:58 local time. we're told three people on board. two are confirmed dead. there is one survivor who apparently has been able to -- is conscious. we're not exactly sure what they have been able to tell rescuers. police believe on board were all helicopter crew members and apparently a medical chopper, but we don't have more details on this crash. looking at pictures from
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affiliate koco. we'll bring you more as we get details. other breaking news we've been talking about all morning. we're just a couple of minutes away from the big ruling in the sensational oscar pistorius murder case. the big question, of course, whether the judge will allow the olympic track star to go free on bail. robyn curnow live outside the courthouse in pretoria, south africa. a couple of minutes away. how will the judge, the magistrate, make this ruling? >> well before we even get there, soledad, the tension outside this court is palpable. all of the journalists on the sidewalk, literally poised waiting for information on the blackberries. we have cnn producer inside the courtroom. and i want to give you a sense of what she says, how she paints a picture of what's happening in the moment. i will read it to you from my blackberry. it's getting hot in there. everybody is squeezed together on the benches.
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friend, journalists, writing, tweeting, talking. the big question that everybody is talking about in the tiny little courtroom, will he, or won't he get bail? we haven't been able to call it. the magistrate has asked some probing questions of both legal teams. i certainly wouldn't put money on him going either way. legal experts have been me it's mother-in-law lire thanl get bail. he will give reasons for his decision. unclear how long that will take. >> we're told, robyn, in fact, the magistrate will read through all of the arguments over the last several days. and then he will announce his ruling as well and it could take 10 to 15 minutes as he recaps the last couple of days, presenting what the prosecution is alleging, what the defense has said, and the affidavit itself of what oscar pistorius has read in court, all that comes before we get some kind of
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decision of whether or not oscar pistorius will be granted bail. let's get right to jeff toobin. and chris john farley with us of digital features of "the wall street journal." cameron russell, a model and student as well. about a minute and a half away of the decision coming from the judge. what is your expectation? bail or no bail? >> i want to have appropriate humility about my knowledge and ability to predict the results in the american legal system, much less in the south african legal system if the charge remains premeditated murder, it seems unlikely he will get bail, but if the judge lowers the charge somewhat, as he has the ability to do, then bail -- bail seems much more likely. it's important i think to emphasize the huge stakes of this decision.
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>> for pistol for yus himself. income prison in south africa is a very big deal. particularly if you were detained before trial, the conditions are often worse than if after you are convicted. being a disabled person in prison is very difficult in any country, but especially in south africa. >> one would have to image all of that would be taken into account, or would it not? as a judge determines whether he will be remanded to a jail cell? >> bail hearings are hearings where a judge takes everything into consideration. the biggest is risk of flight. both have reasonable grounds on that argument. pistorius' lawyers say he's one of the most famous people in south africa, no legs, pretty easy to identify. not like he will snack away. the prosecution says he is a very wealthy person, could charter a plane, leave. there are arguments that the judge could buy one way or the
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other. >> we're waiting for the magistrate to make his announcement. he'll begin by recapping the last four days of testimony and he will rule whether or not there is bail or not. it will be audio. audio feed, we'll be able to listen in to what the magistrate is saying. big question is intent. at the end of the day, we know what happened this woman was killed. shot and killed, and we know who did it. whether or not he serves and how much time he serves will be based on what they prove in terms of intent. >> absolutely. in the criminal justice world, you call this intent case. white collar crimes, a lot of those are intent cases. money was transferred and you have to decide it was a mistake, intentional crime? the same issue here. there is going to be a lot of forensic evidence that we don't yet know about in this case. which is, you know, what were the angles of the shot that went into her? were there any signs much struggle in the room before they
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went in there? i find the most problematic part of pistol for ypistorius' story doesn't notice that the woman in the bed with him is not there. doesn't say, reeva, that you? >> stand back, reeva. >> or reeva doesn't say don't shoot me. his story seems immaplausible t me. >> talking about this yesterday. culpable homicide. what is that equivalent to here in the united states? and by the way, i have to warn you, as soon as we hear from the magistrate, we start getting that audio, i'm going to jump in and interrupt you. >> i would hope you would. i think it's more important to evaluate what culpable homicide is in south africa. obviously, we know that premeditated murder, what he's charged with, requires an
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intentional killing. specific intent to kill his girlfriend. culpable homicide includes the unlawful negligent killing of another human being. so you can be prosecuted for basically negligence, it doesn't require a higher standard like in the united states of gross negligence, but just negligence or carelessness, but that doesn't mean this case will be purely one of murder and mistake there is also a very reasonable defense of private defense, like self-defense in the united states, which is self-defense of one's self or others, the question will become in this case, not just about intent, but whether or not he acted reasonably, where he thought there was a dangerous intruder and he used lethal force to protect himself and others. that is part of this case. not simply murder or mistake. or even intent. it also goes to self-defense and
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defense of others as it's called south africa. private defense. >> a couple of questions for you then, what will come out of this hearing as soon as it gets under way, a little bit of a delay. three minutes later than they said they would start. and the magistrate will sum up the last couple of days of what's happened. do a review of the case before he makes his ruling about bail or no bail. outside the bail or no bail question, are you telling me they will be able to come up with a charge? what we know is what he does actually face if it's premeditated murder or culpable homicide? >> no, the issue today is bail. he is charged presently with premeditated murder. under south african law, he falls into a bail category 6. that requires in addition to showing the traditional points of no flight risk, not endangering others, not to interfere with the prosecution's case it also requires a showing -- to release him in the interest of justice and the final critical point is exceptional circumstances.
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however, that's for a category 6 and premeditated murder. if the court feelings this is more like a culpable homicide, it doesn't require the added heavy burden of exceptional circumstances, but rather, just release if it's in the interest of justice. >> how much time can he face? let me ask you a question about that. >> i don't think the court, in fact, will lower the charge, but evaluate it in a different manner. >> you say basically he faces jail time. >> no, no, no, no, no. i don't think he necessarily faces jail time. we're getting ahead of ourselves. >> that's kind of my job to look down the road. >> no. in south africa, there is the presumption of innocence and beyond a reasonable doubt. it's up to the prosecutor to prove every almost beyond a reasonable doubt. they have to prove beyond a reasonable doubt that he did not act reasonably when gripped in fear and he thought there was an
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intruder. you or i or jeff or someone else may think differently, but you have to put yourself in the subjective place of this individual when he was gripped with fear, made an assessment. wrongly perceived the situation and he will argue it was a tragic accident. >> sounds like a defense attorney. >> i will ask you a question about south african procedure looking ahead. what happens between now and a trial? in the united states, we would look at a gran jury process or preliminary hearing. is there an equivalent? what happens now and until the actual trial? there is no jury it will be purely a judge trial. >> i had confess, i'm not an expert on south african law either. die cases around the world, i'm primarily a criminal u.s. defense lawyer. what i understand, the prosecution will lay the charge. and they can continue with the premeditated murder charge or
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they could reduce it. if it remains, the defense can make motions to reduce the charge. they will be permitted discovery, just like in the united states, are you entitled to learn what evidence the prosecution has, including exculpatory and impeaching information, in the bail proceedings, not entitled to the same discovery as would you in a trial. >> ted, i'm going to interrupt you for a moment, to update people on what we are waiting for. running 6 1/2 minutes late. we're told cameras have been ordered out of the courtroom, that people in the courtroom are jostling for seats. oscar pistorius not yet been brought back into court, but the magistrate has -- has arrived and clearly the proceedings starting to get under way. ted, i'll ask you to stand by so we can listen in to what the magistrate has to say and laying out his decision, bail or no bail. as you pointed, the only
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decision made today. the judge is about to start and so -- do we have a chance to listen in on the audio? we'll stand by and we are covering breaking news on the oscar pistorius bail hearing. we've been following the case for the last four days, monitoring every single day, expecting every single day they would milwaukee a decision on bail. dragging out the case, very unusual in south african law, as well as here in the united states too. the judge will make a decision on bail or no bail and looking at a case of premeditated murder. just a moment ago, we were talking about this charge, not focus on the charge. not the magistrate's job today. >> it's not -- the judge is not going to say it's likely he's guilty or innocent, but he will evaluate at least in part the strength of the evidence. >> can we listen in as the magistrate takes over the case. >> when i look at the judgment on the bail application, i would
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like to turn your attention to the order that i made at the outset of the hearing. you will recall that i received a request to televise the proceedings. i would like to add to the reasons already submitted that paragraph 13 of schedule e of the judicial officers of lower courts, as amended by government notice 15, 34969 of 26 january 2012, reads as follows. and i quote "a magistrate may only permit the proceedings in his or her court to be televised, broadcast, or taped for these purposes or photographs to be taken or television cameras or similar apparatus to be used in his or her court during a session on the condition he or she may deem
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fit. a, after hearing arguments by the applicant and/or any other party involved in the proceedings who may wish to oppose the application, b, after due consideration of one, the rights of all parties, including the legal representatives, witnesses, and court personnel involved in the proceedings, and, 2, the interest of the administration of justice. and, c, if he or she is satisfied that it is in the public interest to do so. that is the legislation that guides a magistrate who has -- who is faced with a request to televise, broadcast, or tape proceedings. i'm also guided by the words of the majority of the judges in the constitutional court matter of the south african broadcasting corporation limited versus national director of
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public prosecution and others, 2007, page 167 constitutional court, where the majority of the judgment handed down by judges of the constitutional court indicated at page 68 thereof that before returning to the question of the order in that matter, they considered it helpful to set out some considerations which in our view, meaning their view had to be taken into account, in future when the future when the question of televised court proceedings was raised this is what they had to say at the highest court in our country, confirming a decision of the supreme court of appeal. i quote, the time has come for our courts to embrace the principal of open justice. and all they imply.
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however, in our view, it should be borne in mind that the electronic media creates some special difficulties for the principal of open justice. broadcasting, whether by television or radio, has the potential to distort the character of the proceedings. this can happen in two ways, first, by the intense impact that television in particular has on the viewer in comparison to the print media, and, second, the potential for the editing of the court proceedings to convey an inaccurate reflection of what actually happened. this is particularly dangerous given that visual and audio recordings can be edited in a manner that does no the disclose the fact of editing. this distorting effect need
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tosss to be guarded against and it arises not so much in the presence of cameras and microphones interfering court proceedings themselves, but more dangerously from the manner in which coverage can be manipulated, often unwittingly to produce communications which may undermine rather than support public education on the workings of the court and may also undermine the fairness of the trial. such distortions are much more likely to arise from edited highlights packages than full live broadcasts. in applying my mind in the questions nigh ed to answer, set out in paragraph 13 of the legislation i just quoted, i indeed listened to the argument brought by the applicant and more specifically, that of
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advocate represented in this matter who says the defense has an objection to the request. i will listen to all those involved, court personnel in the proceedings, and in the interest of justice, if i'm convinced it's in the public interest to do so. with regard to the magnitude of the attention focused on the matter and the accused in the matter, the size of this particular courtroom to permit live broadcasting in fairness to all of the interested parties and media houses, but more importantly having regard to the rights of the accused, to the extent it is indeed a matter of concern when you have a large contingent of media photographers, zooming in,
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zooming in, on the accused, flashing at will, and i have on my own witnessed this happen. the applicant sometimes comes out of the police cells and stands in the dock and what happens perhaps unintentionally is that a large contingent of photographers and journalists flash at him and it -- it does raise the picture that the accused is some kind of species that the world has never seen before. i appreciate, however, the need for there to be freedom of expression and i have accordingly tried to accommodate the press wherever i could, to the extent that i have permitted the live audio broadcasting of these proceedings.
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the applicant is oscar leonard pistorius. south african, male, born november 25, 1986. professional athlete, residing at silver lakes drive, silver lakes, pretoria. mr. barry rhue appears for the applicant. and the state also appears. the matter commenced on the 15th of february, 2015, when there was an application for the postponement of the proceedings, and we will proceed with the formal bail application and argument on whether the crime or offense fell within schedule 5 or schedule 6 of the criminal act, 51 of 1977 which i will hereinafter refer to as the act in the rest of the ruling. the matter proceedings on the
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19th of february 2013. the matter will be heard on the basis that it is a schedule 6 offense and i have set out and defined a schedule 6 defense when i gave my ruling. any further particulars will be settled on the state by the applicant, requesting further clarity on the issue of the facts related to premeditated murder and the application is brought in terms of the act. the matter was postponed for the state to respond until the 20th of february. the applicant's case contented with the various applicants of the defense and the witnesses. 20th of february, 2013, the state responded to the am
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can't's request for further particulars on & that is on record. the state commenced with its case by calling warrant officer hilton botha who testified and was cross-examined, followed by re-examination, whereupon the matter was ajuniored to the 21st of february 2013 for both to present the cart with written argument. on the 21st of february 2013, the investigating officer was recalled by the court, and clarification of issues as section 63 of the act. both parties presented arguments with the continuation of the proceedings to the 22nd of february, 2013, in which argument was concluded before me today. now the matter is before me for issues surrounding ruling.
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>> have you be . >> have you been listening to the chief magistrate. let's listen in. >> i want to address the accused incarceration at the police station, rather than the prison. now, the practice, of course, is for an accused to be detained and remanded in custody to the local correctional facility. in this instance, application was made, supported by a letter by the station commissioner of the relevant police station indicating counsel for the accused needed to consult with the accused extensively in preparation of the bail
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application. you will result that i did of my own accord, raise the issue of preferential treatment and was convinced by the argument that he needed to consult. of course, all attorneys and advocates will need to consult. it must be borne in mind that the lead prosecutor, mr. nell had no objection to the request. why did i succeed to the request? the bail application is an important bail application. we commenced with the bail application last week and i can categorically say that if the accused was to the correctional facility rather than the police house and may well have necessitated that the outcome of
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this bail application may have been delayed by quite a few days and that is what i sought to avoid. in addition to the prevention of any argument that the accused rights to prevent evidence which states the accused should be given the opportunity to satisfy the court that exceptional circumstances exist and such reasonable opportunity in this instance necessitated into earlier that his counsel could consult with him, return to consult with him and i would imagine that that would have been quite an extensive and laborious process. i do, however, wish to stress that i am not creating any precedent in this regard insofar
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as the detention of the accused in matters of the district courts, as each case will have to be dealt with on its own merits. in support of his application for bail, the accused, mr. pistorius, handed up a statement under oath. he submits that the interests of justice and fairness dictate his release on bail. mr. pistorius questions the fact that he is charged with murder, let alone premeditated murder, and states that he had no intention to kill his girlfriend, reeva steenkamp. he contests whether the state has objective facts to prove he has committed a planned and premeditated murder and that the objective facts do not refute his version.
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in his statement, he sets out his personal circumstances, his residence, and that he is a south african citizen, although he travels abroad regularly. south africa is his home. he also mentions that his friends and family reside in south africa, but confirms that he has friends abroad as well. this portion of his statement then further deals first with his immovable property and then movable property, including income. he confirms that he has no previous convictions or outstanding cases, as he is enjoined to do in our legislation. paragraph 16 of his statement deals with the merits of the case. he understands the provisions of the act and although it requires
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he does not have to deal with the merits of the case, he elected to proceed on this basis as he denies having planned or committed a murder. he again said he does not believe the state has any objective facts to support their case. he spent the evening of february 13, 2013, the victim, miss steenkamp at his home. they went to bed at about 10:00. his prosthetic legs were removed. at this time, she had already given him his valentine's gift, asking him not to open it until the next day. being aware of violent crime and having been the victim of crime in the past, he slept with his .9 millimeter under his bed. he awake -- he awoke during the
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early hours of the morning to bring a fan in from the balcony and close the sliding doors. at this stage, he heard a noise in the bathroom. being aware of the fact that there are no burglar bars before the bathroom window, and that contractors who had worked on the premises in the recent past had left stepladders outside, he was overcome with terror and believed that someone had entered his house. he was too scared to switch a light on. he has mobility in his stumps. at this stage he grabbed his .9 millimeter gun, screamed words to the effect that the person should leave his house, and shouted to reeva to call the police. he believed her still to be in bed. upon entering the bathroom he noticed that the window was open and that the toilet, which has a
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separate door, was closed, and he heard movement within. at this stage he believed that they must have entered through the window. he was vulnerable on his stumps and had to protect both himself and miss steenkamp. his bedroom door was also locked and he felt trapped and in danger, should the intruders emerge from the bathroom. at this stage, he fired shots at the closed door, and again shouted to miss steenkamp to call the police, but she was not responding, and it was pitch dark. when he reached the bed, he realized that she was not in bed, and it dawned on him that she may be the person in the toilet. he returned to the bathroom, calling her name, and upon trying the door found it to be locked. he went to scream for help at the balcony. at this point, he put on his prosthetic limbs and tried to kick the door open.
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he thinks he switched on the lights at this stage. he then retrieved a cricket bat from his room, broke off some panels, found the key, and unlocked the door. the deceased was slumped over, but alive. he pulled out of the toilet and called one johann standard, the administrator of the estate and asked him to phone an ambulance. he himself phoned. went downstairs, unlocked the door and picked miss steenkamp up, as he had been advised to take her to hospital. on his way down, a doctor living in the complex arrived, the deceased died in his arms. with hindsight he believes she must have gone to the toilet when he went onto the balcony. he is mortified at the loss of miss steenkamp as well as the pain and suffering caused for her family.
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he stands by this version of events and believes that the expert evidence gained will bear this out. he stated further that he will stand his trial and believes that the south african legal system and the facts will eventually show that he did not murder reeva steenkamp. he then proceeded to deal with each subsection of section 64 of the act, and i'm sure many of you yourselves may now have learned a lot about section 60 and section 64 of our criminal procedure act. mr. pistorius added he does not know the witnesses nor does he interfere with any of the witnesses or contact any of the witnesses listed by the state. he bears no grudges, has no previous convictions or outstanding cases and is not disposed to violence. he does not constitute a flight risk, and he's willing to hand in all travel documents and not apply for another as part of
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bail conditions. he will not attempt to flee the scene. he will be able to raise an appropriate amount of bail. as far as the evidentiary material goes he does not know what it consists of but believes it is in the possession of the south african police and he does not have access to it. he further undertakes not to interfere with the investigation and that his release will not disturb the public order or undermine the function of the criminal justice system. are you okay? want a drink? he believes that the interests of justice, consideration of prejudice and the balancing of all respecting interests favor his release on bail. in support of the application advocate barry rous attended
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affidavits by various deponent, one alessandro del.a. cuta, male residing in danefield, met him in 2007, they exchanged numbers at their first meeting and kept in touch thereafter. he found oscar to be kind, caring, fun-loving person. they became such close friends that he would invite him to family gatherings and go on holidays together. oscar would confide in him about his problems and vice versa, and on november 2012 oscar told alex, the deponent about reeva and he invited her to the south african sports awards and he would also confide in alex about his relationships, he told alex he had fallen for reeva and
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wasn't afraid to express it. he explained oscar and reeva were comfortable with each other and they were happy when he met them in december 2012. he further explains that they were always at ease around each other and made each other laugh. he never saw them argue or fight. it was clear to him that they were very much in love. from the few times alex was with reeva, she seemed like a happy, bubbly person. alex found oscar to be a humble, generous and kind person and last spoke to the applicant 13 february 13. he referred to the accused before court. he last spoke to the applicant on 13 february 2013 at 18:30 and asked how reeva was doing.
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39-year-old male residing in santin, met oscar at his car dealership, they became close friends and going on holidays together, they saw each other almost every day and often spoke over the telephone. dustin asked the applicant to be an ambassador for his various business interests because he was an international icon and yet still down to earth and an intelligent man. as their friendship grew they started to socialize more together and dustin often invited him to social event. justin met reeva through his girlfriend last year and got to know him quite well. oscar invited them independently to a track day in november 2012 where the applicant and reeva first met. he took the credit for introducing the deceased to the applicant in these proceedings. it was clear to justin that the
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more time the applicant and reeva spent together, the more they fell in love. the applicant invited reeva to the south african sports awards as a friend and the applicant told justin that reeva was a really fantastic person and they hit it off. in december, reeva and the applicant joined justin and samantha on holiday in capetown, and thereafter the applicant started to introduce the deceased to friends and family. the applicant told justin that he was going to invite reeva on future overseas trips with him, which surprised justin, as oscar never invited any of his previous girlfriends on trips overseas. on the 13th of february, 2013, justin invited the applicant to stay over in johannesburg for a
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boys' dinner. the applicant had spoken to reeva and decided to go to pretoria and spend the night with the deceased. samantha revenstein is a 29-year-old female has known reeva since 2007. samantha met the applicant through her boyfriend justin and found him to be a polite, well mannered and humble man. on the 4th of november 2012 she received a message from reeva to say that she is going to the south african sports awards with oscar. reeva explained to samantha the next day that she had an amazing time with the applicant and she thought he was a really nice guy. the applicant was often the topic of discussion during reeva's and samantha's conversations. after a while, reeva still said oscar was a great guy and that
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he treated her like gold. in december the applicant and reeva joined justin and samantha during holiday on capetown. reeva often mentioned she was very happy and could see a future with him. reeva mentioned the relationship was moving fast but she was nonetheless in love with him. on the 13th of february 2013 samantha messaged reeva to watch a movie with her in johannesburg and she said she would come back to her and later meet oscar. the applicant who called reeva suggested they stay home in pretoria. samantha indicated that the applicant and reeva got along very well and were very compatible and the deceased mentioned that she really loved oscar. exhibit e was that of one graham edward binge, a 33-year-old adult male, currently residing
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in port elizabeth. the applicant is his first cousin, related through their mother's sisters. on the 13th, the applicant and graham exchanged various messages on what's up. the applicant phoned the deponent at about 25 past 8:00 and they spoke mostly about cars as they shared a common interest. graham wanted to bring his new vw up to pretoria and oscar suggested that he shouldn't as there was a high risk of this type of vehicle at one of the nearby complexes. the applicant told graham he bought a new house in johannesburg and further said to him that he was going to buy or purchase the house also when they met in december. it sounded to this particular
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deponent, graham edward binge that things were right on track from discussions in december 2012. the call lasted up to 20 hours 45, and that was the evidence for mr. pistorius. in response thereto, advocate now called one officer who testified he's a detective warrant officer of the south african police for 24 years. on the 14th of february 2013 at about quarter past 4:00 in the morning he was on the scene. he saw the deceased lying at the bottom of the staircase, already dead. she had a black vest and white shorts. he said further bail is opposed because the applicant won't
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stand trial, he was a flight risk. he considered this a serious matter and added that a possible sentence of 15 years to life inprisonment was on the cards. he learned the accused was a professional athlete who spends times overseas and has a house in italy. there was a safe in the kitchen at the time of his arrival and the accused attorney arrived with a locksmith to open the safe. they were looking for a document and memory stick with account numbers for counsel. he testified further if the accused leaves south africa he won't be able to get him back as south africa does not have extradition treaties in every country. he considered this a very serious offense and that a defenseless woman was shot three times and the shots were fired
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through a closed door and she was unarmed. he added the applicant had given the version to the police that he thought the party was a burglar. statements were taken from the neighbors and witnesses and confirmed that on the scene of the crime where experts from the fields of ballistics, photographers, fingerprints, blood spatter, the postmortem revealed wounds one on the right side of the head, one in the right elbow that broke the arm and one through the right hip. there was also a bullet hole through the white pants. he added that .38 rounds of ammunition were found and that
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the applicant has no license for a .38 special revolver. he indicated that it was the state's intention to charge the applicant with unlicensed possession of ammunition. he indicated that when one, according to his experience, goes for the test to obtain a firearm license, one of the questions is about when to shoot and when not to shoot. he described the scene as a two-story dwelling, one entered through the front door and one would have to pass the deceased on the staircase to the kitchen on the left. if you go up the staircase you turn right to the main bedroom. if you enter the bedroom and turn left you see a king sized bed, bookcases and, bookcases to the left of the bed, together with the couch. on the left side was a pair of female slippers, worn by women. you go through a walk-in dresser
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cupboard area and get to the bathroom. from the bedroom to the bathroom is about 6.8 meters. if you turn from the right you see the shower and toilet with their own doors and two basins on the extreme right-hand side corner almost against the showered door. in the bathroom we saw a piece of the wood that originated from the broken toilet door lying on the floor of the bathroom itself, where cartridges with one .9 millimeter cartridge in the doorway. there was one in front of the shower door, two phones, one iphone 4 and one iphone 5 in the bathroom on the mat. the size of the bathroom was 2.55 by 2.83 meters. the toilet and shower are to
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your right at the opposite wall, furthest to your right and the basins as i've said were adjacent to the shower door. the toilet measures 1.4 by 1.4 in diameters in meter. there were two phones in the blackberry lying in the bedroom. he checked all the phones and discovered no calls had been made. the toilet door had two panels, the top panel outside the toilet and one outside. shots appear to have been fired through the door and the key was on the outside of the door. there were four cartridges found, a cricket bat was lying in the bathroom and it was sent for further tests to be conducted to establish whether it was used to gain entry into the toilet.
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the experts of the ballistic team informed him that the shots were fired at an angle towards the toilet seat. the shooter would have been classified as 1.5 meters from the door and the shooter would have had to stand next to the shower with his back to the wash basins. there were three entrance wounds, one projectile hit the wall, in the top corner on the left. if one is on the balcony of this bedroom one would have to pass the bed to get to the bathroom, through the bathroom window. when he looked down he saw that there were two dogs and he indicated that whilst he was not an expert, he guessed one was a pit bull and the other a bull, this was on the ground area beneath the bedroom. he indicated further that the
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ballistics experts had confirmed that the shots were fired at an angle through the top portion of the toilet door in a downward direction. near the tv area, he found a package of testosterone with needles and injections. he obtained the statements of neighbors who had heard noises. he testified further that there were previous incidents as appeared in the media, which he investigated, one of which was at the melrose arch, it was a shooting incident where the applicant had accidentally discharged someone else's firearm in the restaurant and asked that person to take the rap for him to avoid publicity. then the accused according to his information was involved in a fight at the daytona event at
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kayalami and was so enraged that he actually used profanities indicative of a threat of assault. the complainant in the matter wanted to open a civil and criminal case against the applica applicant, mr. deverus, the applicant's friend, persuaded the complainant to drop the case because of the negative impact for his company with the media as his sponsor was mcclaren. the matter was settled through their attorneys. one other, mr. mark bachelor according to this witness heard what happened at kayalami and tried to establish what was going on with the applicant and the applicant said that he would break his legs. warrant officer testified when he went back to the scene a .9 millimeter pistol hollister were on the left side of the bed where his slippers answer overnight bag were.
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on the probability of the accused defending himself he indicated it could be true, but it's highly unlikely because the door was closed. he didn't know who was in the toilet and he didn't even call for his girlfriend. he stated further that he was in the possession of statements from one witness who heard, who indicated that voices two of people were heard talking loud between 2:00 and 3:00 a.m. he also indicated that there was a statement from another person who testified that or who indicated in the statement that he had heard gunshots and went out onto his balcony, saw the lights on at the applicant's premises, went back to bed, heard a female scream and then heard two or three more shots. on cross-examination the defense dealt with the state's charges
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as amplified by defensive argument and response to further particulars and on the question as to whether he had not furnished a version of sorts, the witness eventually submitted that they did say to him that he thought it was a burglar. advocate rous took his time on the statements of the argument that the applicant had not finished a version of sorts and from his cross-examination he was able to elicit from warrant officer bota that indeed the applicant did say to him that he thought it was a burglar and that indeed amounts to some kind of version. he was extensively cross-examined on his having heard from the ballistic experts that shots were fired at the toilet seat from a distance of 1.5 meters. he did in fact agree that on the
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defense version being that shots were fired from the entrance to the bathroom, it would follow the same trajectory to the toilet if aimed at the toilet from there. so he conceded to the extent that the defense's version was that the applicant had shot from the entrance of the bathroom. he also did not indicate that the ballistics statements to him that the shots were fired from 1.5 meters inside the bathroom was untrue. on the question of whether the lights were switched on before or after this shooting, he did confirm that the witness' statement that he had in his possession seemed to indicate that after he had heard the shots, the lights were on. mr. pistorius' affidavit
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indicated he put the lights on after the shooting. he was studying questions on whose voices could be heard against the affidavits in his possession that there were people arguing loudly. couldn't say it was the applicant or the deceased. he was also forced to concede in cross-examination that it was not known who was talking and neither to he confirm that the sounds emanated from the applicant's house. he also indicated that his initial testimony about the persons who had heard sounds from the applicant's house, that they lived approximately 600 meters way was not correct.
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he did concede that he didn't ask the accused defense if there were other cell phones, the defense put to him that the applicant does have a cell phone and gave him a number in court. the defense contended to him that the postmortem will reveal that the deceased' bladder was empty. he could not deny that and agreed that that would be in line, if the defense's version was that she was in the toilet. it was put to him that if the deceased went to the toilet at the point that the accused had gone to obtain the fan, it would be possible he didn't see her, and he indicated that he didn't particularly go and test this after the accused affidavit was
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handed in. he indicated in cross-examination that the stick letters were not immediately outside the bathroom window area, but further away. the defense persisted with the version that the accused being so vulnerable as a person in prosthesis would want to protect himself as well as his girlfriend and mr. bota responded by saying or arguing why then would the applicant charge into a very dangerous area if his intention was to protect himself and the deceased? he conceded or agreed there was no sign of assault whilst he attended the postmortem himself. he conceded the state's response to the defense request for further particulars makes
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mention as part of the case for the state on premeditated murder, they've mentioned make of phone calls. he agreed there were no calls made he knew of and then changed his version to indicate that this actually meant the absence of calls. it was put to him that the ap. kay l applicant was wearing a patch on his shoulder which resulted in him sleeping on the left side of the bed, where he didn't normally sleep, and he indicated that he hadn't seen the patch. the defense on cross-examination specifically denied that the applicant had a house in italy but indicated that the accused had a dormant account in brunswick, carolina. it is worth mentioning at this point in time no mention is made in the affidavit by the applicant supporting his bail
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application of this dormant account in carolina. he was thoroughly cross-examined where the discharge was under the table and whilst it was put to him that the gun went off whilst it has been passed to the applicant under the table he maintained it was the applicant who discharged the file. turning to our legal position, in a comment on the criminal procedure act bail is described as a contract in terms of which an accused who is being held in custody is set at liberty upon his payment of or his furnishing of a guarantee to pay a fixed sum of money and further upon his express or implied
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undertaking to comply with the general conditions and specific conditions relating to his release. the state on the other hand, where court by granting bail has deliberately given recognition to an accused's right to liberty, the state will only succeed in having bail canceled if it can place convincing facts in support of such cancellation before the court. on a practitioner's guide, third edition page two further traces the origin of the bail process to the seventh century england in contrast to the early roman dutch law where the concept of bail was practically unknown. the constitutional court as per the judge in several cases,
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1999, page 51, constitutional court footnote eight of paragraph three of the judgment, summarized the history of bail ino south africa as as follows, bail insofar as south africa's root dates back to 1848, first made clear provision for the release of an awaiting prisoner on bail. subsequently the cape ordinance served as a model for similar statutes in the town. shortly after the south african war criminal code was introduced in the colony which was to form the basis of the first national criminal code, act 31 of 1917,
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and its successor act 56 of 1955. extensive provisions relating to bail were enacted in chapter nine of the criminal procedure act 51 of 1977 which came into operation on the 22nd of july, 1977. these provisions were revised by the criminal procedure amendment act, 75 of 1995, and again by the criminal procedure second amendment act 85 of 1997. further amendments to some of the provisions have also been affected since then. despite the fact that bail is predominantly regulated by legislation the ocommon law principles relating to bail have not been discarded. in several instances where the criminal procedure act is silent or ambiguous, our high courts have fulfilled their obligation and functions by resorting to their common law powers. while south africa's transition to a new constitutional
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dispensation and the advent of the bill of rights, the position leading to bail was in section 25.2 of the interim constitution of the republic of south africa in 1993, and act 200 of 1993 and eventually section 1f of the constitution of south africa in 1996. on the 3rd of june 1999 the constitutional court in the many cases i've referred to above by way of summary said interalia that -- excuse me. none of the provisions of the constitution presents any major
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obstacle to the application of the provisions in the criminal procedure act dealing with bail. bail as an institution is well-known, so are its objectives and broad criteria. the advent of the constitution and the adoption of the 1995 and 1997 amendments to section 60 of the criminal procedure act properly construed have provided and guided the evaluation process. section 35.1 of the constitution acknowledges that persons may be arrested and detained for allegedly having committed offenses, but such arrestees were entitled to be released on reasonable conditions if the interests of justice permit. deciding whether the interests of justice permits such release and determining appropriate conditions is an exercise to be
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performed judicially and in accordance with the procedure laid down in section 60 of the act. although a bail application is a formal court proceeding, it is relatively informal, inherently urgent and serves a unique interlocu interlocutory purpose distinct of that of the trial. the issue is not guilt but the relation of where justice lies in relation to bail. in determining where the justice lies, it is to ascertain relevant circumstances using as a guide the checklist of relevant factors against the grant of bail provided in subsection 4 as particularized in subsection 5 to 8a, and of those for the grant of bail provided in subsection 9. with regard to the fact of those for and against the grant of bail the court has to consider any other relevant factors.
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in seeking to establish the presence of such factors, the court is to act as proactively and inquizitorally as relevant. the court must weigh up the pros and cons of bail judicially, keeping in mind the possibilities of using appropriate conditions to minimize possible risks. subsection 11a, where it is involved the court should be astute to ensure that the right to bail under section 35.1f of the constitution is not rendered elusive by subsection 14, the incidence of the onus and need to produce evidence. the accused is entitled to a reasonable opportunity to establish certain exceptional circumstances. the latter term holds no hidden meaning and is to be applied judicially. although the accused' guilt may be relevant evidence thereon should be confined to the
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central issue whether the interest of justice permits the release of the accused on bail. abuse of the right to cross-examination on that issue may result in the evidence being excluded at the trial. the record of bail proceedings is neither automatically excluded from nor included in the evidentiary material at trial, whether it is to be excluded is governed by the principles of a fair trial. bail serves not only the liberty interests of the accused but the public interest by reducing the high number of awaiting trial prisoners clogging our already overcrowded correctional system and reducing the number of families deprived of a breadwinner. the case law regarding the
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concept exceptional circumstances are too numerous to mention. however in s. versus poulton page 12 and i quote, in determining whether or not a bail applicant has established the existence of extraordinary circumstances within the meaning of section 60.11a of the criminal procedure act the court has to make a decision on the facts, judge is in the context of the particular case, facts which might be sufficient in one case might not be enough to warrant the grant of bail in the particular context of another matter. this court will be guided by the factors set out in 64a to e,
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with section 65 to section 68a, also section 69 which shall be referred to in the reasons for the ruling. the state in in matter argued this was a schedule six offense and in response to a request for further particulars avert that it will show the deceased reeva steenkamp arrived at premises on the 13th february 2013 and planned to spend the night. an overnight was found in the main bedroom and cosmetic bag in the bathroom. both toilet and bathroom were upstairs. the distance from the main bedroom to the bathroom is seven meters and a passage links the bedroom and bathroom. the accused was shot three times on the toilet, she died from the gunshot wounds.
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the defense brought an application in terms of section 16.11a for information to be provided by the state so as to give the applicant a reasonable opportunity to produce evidence which satisfies the court exceptional circumstances exist which in the interest of justice permit the applicant's release on bail. the state responded by adding the following to its argument supporting that this is a schedule six offense. it was stated in the response that the state will inter alia rely on the deliberate firing of the shots aimed at the toilet at 1.5 meters, the wounds were on the right-hand side of the body, the fact she was dressed at the time of shooting, the fact that the door was locked from inside, the state is in possession of a witness statement to the effect that the witness overheard talking non-stop like fighting for a whole hour between 2:00 and 3:00 in the morning, on the morning of the incident. the defense argued that this could never have been
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premeditated murder and i've heard extensive argument on that scope. in the issue of determine iing whether we are dealing with premeditated murder at bail stage has previously been dealt with by our courts and i said so in the ruling that i made which i do not intend to repeat. i wish to add, however op. the question of premeditated murder, having heard the arguments and given my ruling i would venture to say at this point of the hearing i am not at this point as much seized with the issue of finding beyond a reasonable doubt that the applicant had committed a premeditated murder.
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what is important at this time is for the state to my mind to be able to prima facie put forward some facts as set out in section 16.11a, either by certificate by the director of public prosecution or a complete indictment, and in this instance the state not only handed in a charge sheet, they handed in a further charge sheet and amplified that heads of argument and further amplified that responding to the section 16.11a request, all that in its totality absent the certificate from the director of public prosecutions is in any event to my mind enough for the state to have met the threshold to establish and put before me premeditated murder from which i should work for the purpose of this bail application. i am not clear at this point in time to find the accused guilty
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of premeditated murder. of course, at the end of the murder and after all the evidence has been heard, it will be for the trial judge to draw that inference as the only reasonable inference that the facts show premeditated murder. i must rely on the bona fides of senior counsel who is presenting the state's case and what he has in his possession at this point is nothing more than circumstantial evidence, but that does not prevent the matter falling under the category of schedule c, and i'm going to approach it in that vain from here onwards.
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would it be possible for know get five minutes? thank you. court will adjourn. >> welcome back, everybody. so they just played the music, because they have taken a five-minute break in this case but we've heard over the last literally one hour from the chief magistrate in this case is he's been reviewing the history, not only of the last four days in which the defense and the prosecution have been presenting their arguments but also he has sort of reviewed legal history behind all of his decisions including history back to the bora war, back to the romans. why is he being what i would read as very defensive about how he's laying out every decision is he making? is it only because this is a case that is being literally watched around the globe? >> high profile cases make judges do strange things and the judge here is doing what seems to be a very meticulous summary of first the law of public
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access televised trials in south africa, then the issue of what evidence was presented over the course of this hearing. then he moved to the history of bail in south africa. the most important thing he did so far i think is he said that the evidence was sufficient for him to consider this case as one of premeditated murder level six in south african law. that establishes -- >> but he went on to say i'm not here to decide if in fact that, whether or not he's guilty. >> but it is still important for him to say at least the government presented evidence from which he could find premeditated murder, which establishes a higher threshold, which makes it harder for pistorius to get out on bail. that is a decision that is at least a preliminary victory for the prosecution that he will consider this as a premeditated murder case. >> he's covered a lot of ground but sort of the ground he has not covered is the context in which this whole entire case is
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happening, right? we know pistorius has talked about how fearful he was because of the atmosphere of violence that exists already in south africa, but there's another atmosphere of violence as well against women in south africa. >> definitely. i think this case can be sort of what newtown was for gun control in the u.s. to domestic violence and violence against women in south africa. last year the world health organization reported that 60,000 women and children are victims of domestic violence a month in south africa, that's the highest in the world. >> a lot of that will depend on what is presented in this case. is it a case of, as the prosecution has laid out, all these things that stand out in this case, they mentioned that she was dressed when she was went to the bathroom, took two cell phones with her, there are reports of witnesses hearing arguments for an hour before we know that the shooting took place, a lot of which direction this goes and if it can have an impact will depend on how the case is presented. some people say it will be a
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forensic case. >> it's fascinating he spent a lot of time talking about why he did not want to have cameras in the courtroom, why there was going to be an audio feed only justifying that, talking about how video tends to, can distort video editing can distort the perception of what happens in a courtroom when clearly we're already seeing media distortion taking place right now in terms of how long he spent just detailing the case. this obviously -- >> do you think that's distortion or do you think that's someone who is being so meticulous as jeff described it because he wants to make sure with everyone watching no one can later say we decided to let him stay at the police station rather than being in a jail cell because he's a celebrity. >> perhaps distortion in a good way but still the detail seemed to be a distortion from the way things typically are done in terms of going into that level of detail, going back to roman times, citing case law that relates to england. that's all very interesting and i wonder if that will continue as this case goes on.
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>> robyn curnow is standing by. people are once again taking their seats in the courtroom, so any moment, robyn, we know that the magistrate could come back in and restart the case. they've taken a delay but we don't know how long. robyn, awhy are they breaking? do we know? >> reporter: i don't and i must say it's cite frustrating standing outside this courtroom. i have two cell phones and my notes and i think like all of you, i feel like i also want to be squashed inside that tiny room. we do know this as we can hear from this magistrate he's been very thorough. he's fully aware of the magnitude of this, that people are listening literally to his every word. he's also perhaps playing a little bit of theater here as is done in many courtrooms, so he's probably just allowing a little bit of that suspense to build up again, and he has been pretty good at building it up, hasn't he, throughout this afternoon. he said five minutes. they'll take a break and start again. so i think he has got, let me look at my watch, he's got 15 minutes to come to a decision
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and he's going to take it to the wire because the court closes here at 4:00 p.m. local time which is in 15 minutes so i would say that he's just working up to the sort of final crescendo. >> is that because he is being defensive in his posture in terms of anyone later saying that the magistrate, as we've seen him pass cases here in the united states people will pick apart every single decision he's made so he's being very defensive. looks like he's picking up again inside the courtroom so let me put you on hold and we'll listen to the chief magistrate. >> -- will endanger the safety of the public or any particular person or will commit a schedule one offense or where there's a likelihood the accused if he were released on bail will attempt to evade his trial or c, where there's a likelihood that the accused, if he or she were released on bail will attempt to influence or intimidate witnesses or to concede or destroy evidence or d, where there's a likelihood that the
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accused if he or she were released on bail will undermine or jeopardize the objectives or the proper function of the criminal justice system including the bail system. or e, with exceptional circumstances there's a likelihood that the release of the accused will disturb the public order or undermine the peace of public security. when one is looking at 60 subsection 4, subsection a, one would have to take into account the following factors, mindful of the fact that if any of these grounds are established, then the interests of justice do not permit the release of the applicant in this matter. in looking at the ground in section 64a, i would have to take into account the degree of violence towards others implicit in the charge against the accused, any theater violence which the accused may have made
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to any person, any resentment the accuser is alleged to have against any person, any disposition to violence on the part of the accused as is evident from his or her conduct, any disposition of the accused to commit offenses referred to in schedule one as is evidence from his or her past conduct. the prevalence of a particular type of offense, any evidence that the accused previously committed an offense referred to in schedule one while released on bail, or any other factor which in the opinion of the court should be taken into account. now, when you look at section 64 subsection b, being where there's a likelihood that the accused if he or she were released on bail will attempt to evade his trial the factors that i would have to look at in determining whether that ground has been established are, a, the emotional family community occupational ties of the accused to the place to which he or she
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is to be tried, the assets held by the accused and where such assets are situated, the means and travel documents held by the accused, which may enable him or her to leave the country, the extent, if any, to which the accused can afford to forfeit the amount of bail which may be set, the question whether the extradition of the accused could readily be effected should he or she cross the borders of the republic in an attempt to evade his or her trial. the nature and the gravity of the charge on which the accused is to be tried, g, the strength of the case against the accused, and the incentive that he or she may in consequence have to attempt to evade his or her trial. the nature and the gravity of the punishment which is likely to be imposed, should the accused be convicted of the charges against him or her the binding effect and enforceability of bail
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conditions which may be imposed and the ease with which such conditions would be reached or any other factor which in the opinions of the court should be taken into account. i do not think it necessary at this point in time to go into the factors that need to be established for the invocation of section 64c, d and e. if i were to look at the strength of the state's case which falls under the categories that i've mentioned now, on the score also of whether there's a likelihood that the accused, if he or she were released on bail, i would read the same with the nature and gravity of the charge in which the accuser will be tried. now, if i have regard to the evidence of warrant officer and the strength or weakness of the state's case and working from the point of departure, that if
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the defense had succeeded in showing the state's case to be weak, then i view that that is a ground that falls for application as an exceptional circumstance. if on the other hand the state in seeking to establish that its case is so strong that the accused, that the applicant will be a flight risk or cause harm to others, it is for the state to establish that by virtue of the strength of its case before that viparticular provision cane evoked. with regard to the evidence of
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officer bota, on the issue of flight risk and propensity to violence, the warrant officer made several errors and concessions during cross-examinations and these are, among others, he didn't bother to ask for the other cell phone phones that may have been present, nor did he go and check on the cell phone number given by the defense in court. the fact he testified he found cell phones, but he is the one, he is the very one who indicated that there were no calls made from those cell phones. now, when the defense in court at an early stage of these proceedings indicates that the accused had a cell phone and this is the number, at no point thereafter does he investigate that further. he does not verify the cell phone information of the
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deceas deceased. if it was the deceased's cell phone that was on the floor, it is highly important and of crucial importance rather to show or not show that there were calls or incidences that may have been made up to 2:00 in the morning and that would have been an important part of the puzzle. following procedure is another issue to talk about, he may well have contaminated the crime scene by not wearing protective gear on his shoes. i do think, however, at the time that he entered the premises, much of the investigation would have been concluded. he agreed with the probability of the defense's version to the extent that if shots were fired from the entrance of the bathroom that they would travel in the direction of the toilet. i feel that he could have done more to establish if this applicant had other incidence or
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a tendency in cases wherein violence was involved. he conceded to the court on the court's questioning that his language of choice on certain questions was indeed even puin african. he blundered on the exact description of the substance and needles that were on the scene, initially saying it was testosterone but very quickly retracting in the face of the aversion that it was tess toe com testocomposudium. he said he had a clipboard. did you write it? no, there were others who were also taking information. he didn't call to negate the call by the accused.
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he wants to oppose bail. in the face of being told there's a memory stick with account numbers, offshore accounts, him being the policeman on the scene, did not deem it necessary to seize with the might of the law behind him such evidence as is necessary to prove that the accused has got offshore accounts, which was a material factor that i would consider when it comes to his likelihood to be a flight risk. did he try to establish whether the number given by the defense was the accused's cell phone number? he did, however, i must, to his benefit, add defend the position that the three of the car strinlg
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tridges found in the bathroom that the shots were fired from where the ballistic expert thought it was. i must add in assessing his evidence and answers, i really feel that it wasn't just through the persistence of the questioning of advocate rous that he conceded eventually that on the defense scenario, the trajectory could be the same. he considered that there was a cartridge outside in the passage which he omitted in the evidence in chief. he also considered that at this stage the witness who heard the voices and the arguing could not see where they were coming from and not indicate that they originated from the applicant's home. what was astounding, of course, was his perception of distance,
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indicating that the statements of those witnesses and his recollection of the distances of their homes from the applicant's home was initially 600 meters. on questioning by the court and the defense, he then changed to 300 meters, and then went even le less. i do, however, want to also indicate that his concession that indeed if the deceased's bladder was empty it would be in line with the defense version that she was in the toilet. indeed so, there may be other reasons for her bladder having been empty, and i do not think he was expert to answer that. he was criticized for not testing the version in the affidavit that he wanted to get the firearm in that time the deceased could have gone to the
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toilet. why didn't he go and check it out? he conceded that the deceased would have locked herself in the toilet if the applicant had screamed to the intruder, get out. reeva, call the police! it's equally possible as was pointed out during the address to the court that the deceased if she was on the toilet could equally have asked what's going on, open the toilet door and nervously come out. i was indeed satisfied on the score of his answer with regard to the contention that the accused being so vulnerable would want to seek to protect himself and his girlfriend. advocate, rather warrant officer
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hilton responded quite confidently but why would the applicant charge into the danger without his prosthesis when there were so many other options available to him? now of course it is an area of concern that the defense and the officer says he heard about it, even if there was a spent bullet in the toilet bowl, whose fault is it really? i think what is of primary importance to me is while there were concessions made by warrant officer bota, warrant officer bota is not the state case. warrant officer bota is a police official that was first on the scene. is he not necessarily the most senior police official who may be tasked with the investigation. it is of course desirable and i will indicate why that, when there's a crime of this
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magnitude in terms of the public interest and who the applicant or accused is, it is of vital importance that the south african police service at the outset as soon as they learn about the profile of the matter allocate a senior and experienced detective to take control of the crime scene with a view to testifying in court as a matter of course if bail is opposed. warrant officer bota said there are aspects of the defense portion with which he agreed and that were consistent with the defense's version of the applicant or the accused being in the passage insofar as the trajectory of the shots, but warrant officer bota's concessions by no way mean that he agreed with the defense's version, a version was put to him. he also had the state version
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that there were three cartridges in the bathroom and ballistics indicated that the shots were fired from 1.5 meters way. equally, he on more than one occasion repeated that he considered it improbable, he even went so far as to repeat as i've said that there were three cartridges in the bathroom. i want to highlight it can never be said that warrant officer bota is the state's case. it's his evidence that may have been to an extent tarnished by cross-examination, not the state case. he is not the state case. the state case comprises of experts who will put together pieces of circumstantial evidence, i would imagine. i cannot agree with the contention that